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THE REFEREE’S REPORT RELIED ON HEARSAY AND SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not prove the amount due the plaintiff and therefore the referee’s report should not have been confirmed:

… [W]ith respect to the amount due to the plaintiff, the referee based his findings on an affidavit of Theresa Robertson, an employee of the plaintiff, who averred, based on her review of the plaintiff’s business records, that the defendant defaulted by failing to make the payment due on May 1, 2010, and “all subsequent payments.” However, as the defendant correctly contends, Robertson’s assertions in that regard constituted inadmissible hearsay … , since the records themselves were not provided to the referee … . Moreover, even if the records had been provided, ” [a] proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures'” … . Nothing in Robertson’s affidavit, in which she averred that the plaintiff received the original note on May 13, 2013, indicated that the plaintiff was the maker of the records relating to the defendant’s alleged initial default in May 2010 and her alleged failure to make payments for some period of time thereafter. Robertson also did not aver that the records provided by the maker were incorporated into the plaintiff’s records and routinely relied upon by the plaintiff in its own business … . Therefore, the plaintiff failed to lay a proper foundation for the business records on which Robertson relied with respect to the amount due to the plaintiff. Contrary to the plaintiff’s contention, under the circumstances presented, the Supreme Court’s error in relying on the hearsay evidence was not harmless … . Nationstar Mtge., LLC v Durane-Bolivard, 2019 NY Slip Op 06502, Second Dept 9-11-19

 

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BOTH PARENTS ACKNOWLEDGED A CHANGE IN THE CUSTODY ARRANGEMENT WAS NEEDED, FAMILY COURT SHOULD NOT HAVE DISMISSED MOTHER’S PETITION (SECOND DEPT). ​

The Second Department, reversing Family Court, determined mother’s petition for modification of the custody arrangement should not have been dismissed. The matter was remitted for a continued hearing:

… [A]ccepting the mother’s evidence as true and affording her the benefit of every favorable inference, the mother presented sufficient evidence to establish a prima facie case of showing a change of circumstances which might warrant modification of custody in the best interests of the children … . The mother testified at the hearing that the parties had orally agreed to alter the custody arrangement so as to have the children alternate between the parents’ homes every two weeks, instead of every week as provided in the January 2015 order. This testimony was consistent with the father’s statements in his answer. That both parents acknowledged that an adjustment to the original custody arrangement was needed, together with information derived from the in camera interviews and other evidence in the record that the weekly shifting between parental homes could be adversely impacting the children, was sufficient to warrant a full inquiry into what arrangement was in the children’s best interests. “In addition, while not dispositive, the express wishes of older and more mature children can support the finding of a change in circumstances” … . Matter of Morales v Goicochea, 2019 NY Slip Op 06494, Second Dept 9-11-19

 

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BANK’S PROOF OF DEFENDANT’S DEFAULT INSUFFICIENT AT BOTH THE SUMMARY JUDGMENT AND TRIAL STAGES IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department determined plaintiff bank was not entitled to summary judgment in this foreclosure action because it did not submit sufficient proof of defendant’s default. At trial Supreme Court properly held that plaintiff bank did not meet its prima facie burden because the proper foundation for the admission of business records was not provided:

… [P]laintiff failed to submit evidence establishing her default. Wilson [Wells Fargo vice president] failed to attach or incorporate any of Wells Fargo’s business records to her affidavit. Accordingly, her affidavit constituted inadmissible hearsay and lacked probative value … . …

“A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” … . At the trial in this case, Wiggins [Wells Fargo loan verification officer] testified only that he had access to Wells Fargo’s computerized records. He did not testify that he was familiar with Wells Fargo’s practices in making those records, and he failed to state that he had any knowledge regarding the plaintiff’s records. Moreover, the plaintiff did not attempt to introduce any of the relevant records into evidence. Thus, Wiggins failed to establish an evidentiary basis for his statement that the subject loan was in default … . HSBC Bank USA, Natl. Assn. v Green, 2019 NY Slip Op 06482, Second Dept 9-11-19

 

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BANK DID NOT SUBMIT SUFFICIENT EVIDENCE OF ITS STANDING, ITS COMPLIANCE WITH CONDITIONS PRECEDENT IN THE MORTGAGE, OR ITS COMPLIANCE WITH THE NOTICE REQUIREMENTS OF THE RPAPL, THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank was not entitled to summary judgment in this foreclosure action because it presented: (1) insufficient proof of standing; (2) insufficient proof of compliance with the notice provisions of the mortgage; and (3) insufficient proof of compliance with the RPAPL notice requirements:

… [T]he plaintiff failed to establish, prima facie, its standing because it did not show that it was a holder of the note at the time the action was commenced. The affidavits of Melissa Guillote and Myrna Moore, both vice presidents of loan documentation of the plaintiff’s loan servicer, nonparty Wells Fargo Bank, N.A. (hereinafter the loan servicer), that were submitted by the plaintiff in support of its motion, conflict as to whether the plaintiff or the loan servicer possessed the note on the date the action was commenced. Moreover, neither affidavit attaches any admissible document to show that the plaintiff possessed the note endorsed in blank prior to the commencement of this action (see CPLR 4518[a] …). The affidavits also fail to show that either Guillote or Moore possessed personal knowledge of whether the plaintiff possessed the note prior to commencement of the action. …

The plaintiff also failed to establish, prima facie, that it complied with the conditions precedent contained in sections 15 and 22 of the mortgage, which provide that required notice to the defendants is considered given when it is mailed by first class mail or when it is actually delivered to the defendants’ notice address if sent by any other means … . …

The plaintiff also failed to show, prima facie, that it strictly complied with RPAPL 1304. Proper service of the RPAPL 1304 notice containing the statutorily mandated content is a condition precedent to the commencement of a foreclosure action … . The plaintiff did not submit an affidavit of service or proof of mailing by the post office demonstrating that it properly served the defendants as prescribed by the statute … . HSBC Bank USA, Natl. Assn. v Dubose, 2019 NY Slip Op 06481, Second Dept 9-11-19

 

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HEARSAY STATEMENTS ATTRIBUTED TO PLAINTIFF’S DECEDENT IN THIS MEDICAL MALPRACTICE ACTION NOT ADMISSIBLE AS ADMISSIONS OR BUSINESS RECORDS; THE DEAD MAN’S STATUTE PROHIBITED TESTIMONY ABOUT THE HEARSAY STATEMENTS; DEFENSE VERDICT REVERSED, NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, reversing the defense verdict in this medical malpractice case and ordering a new trial, determined that hearsay statements to the effect that plaintiff’s decedent had signed an “against medical advice [AMA]” form when he allegedly refused treatment at defendant hospital were not admissible under the Dead Man’s Statute or as statements against interest or admissions, or as business records:

“A hearsay entry in a hospital record is admissible under the business records exception to the hearsay rule if the entry is germane to the diagnosis or treatment of the patient” ( … see CPLR 4518[a]). Here, although the entries were germane to the decedent’s diagnosis and treatment, the defendants failed to offer foundational testimony under CPLR 4518(a) or certification under CPLR 4518(c) … . …

If an entry in the medical records “is inconsistent with a position taken by a party at trial, it is admissible as an admission by that party, even if it is not germane to the diagnosis or treatment, as long as there is evidence connecting the party to the entry'”  … . Here … the entry clearly states that the decedent’s primary care physician, not the decedent himself, was the source of the information … . …

Pursuant to CPLR 4519, otherwise known as the Dead Man’s Statute, “[u]pon the trial of an action . . . a party or a person interested in the event . . . shall not be examined as a witness in his [or her] own behalf or interest . . . against the executor, administrator or survivor of a deceased person or the committee of a mentally ill person . . . concerning a personal transaction or communication between the witness and the deceased person or mentally ill person, except where the executor, administrator, survivor, committee or person so deriving title or interest is examined in his [or her] own behalf, of the testimony of the mentally ill person or deceased person is given in evidence, concerning the same transaction or communication.” Here, both [witnesses] were defendants at the time they gave deposition testimony, making them interested parties under the statute … [and] they both testified to transactions or communications with the decedent and sought to offer that testimony against the decedent’s estate. …

The defendants argue that the plaintiff waived the protections of the Dead Man’s Statute by eliciting the communications at issue. However, “[t]he executor does not waive rights under the statute by taking the opponent’s deposition” … . … Contrary to the defendants’ contention, the declaration of the decedent did not fall within the declaration against interest exception to the hearsay rule because the defendants failed to establish that the subject statement was against the decedent’s interest when made … . Moreover, where the Dead Man’s Statute renders a witness’s testimony inadmissible, “the fact that the testimony would fall within an exception to the hearsay rule is simply irrelevant” … . Grechko v Maimonides Med. Ctr., 2019 NY Slip Op 06478, Second Dept 9-11-19

 

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PLAINTIFF DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE OF DEFAULT PROVISION OF THE MORTGAGE; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the plaintiff did not demonstrate compliance with the notice of default provision in the mortgage. Therefore, the plaintiff’s motion for summary judgment in this foreclosure action should not have been granted:

… [T]he plaintiff failed to establish, prima facie, that it complied with the condition precedent contained in section 22 of the mortgage agreement regarding the notice of default. The plaintiff’s submissions did not establish that the notice was sent by first class mail or actually delivered to the notice address if sent by other means, as required by the terms of the mortgage agreement … . PNMAC Mtge. Opportunity Fund Invs., LLC v Torres, 2019 NY Slip Op 06523, Second Dept 9-11-19

 

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THE PEOPLE DID NOT SUBMIT SUFFICIENT PROOF THAT A PERIOD OF TIME SHOULD BE EXCLUDED FROM THE STATUTORY SPEEDY TRIAL CALCULATION, APPEAL HELD IN ABEYANCE AND MATTER SENT BACK FOR A HEARING AND REPORT (SECOND DEPT). ​

The Second Department, sending the matter back for a hearing on defendant’s statutory speedy-trial motion to dismiss, determined defendant had met his burden to show a delay greater that six months but the People did not present sufficient evidence that a period of time should be excluded from the speedy trial calculation:

… [T]he defendant sustained his initial burden on the motion by alleging that a period of unexcused delay in excess of six months had elapsed since the date that he was arraigned on the felony complaint (see CPL 30.30[1][a]). In opposition, the People failed to conclusively demonstrate with “unquestionable documentary proof” that any periods within that time should be excluded (CPL 210.45[5][c] …). Moreover, the “court action sheet” provided to this Court on appeal, of which we may take judicial notice … , contained only an ambiguous notation purportedly regarding the defendant’s alleged waiver of his CPL 30.30 rights from May 5, 2014, to July 8, 2014 … . Accordingly, the matter must be remitted to the Supreme Court, Queens County, for a hearing and thereafter a report on the defendant’s motion … . People v Perkins, 2019 NY Slip Op 06516, Second Dept 9-11-19

 

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PLAINTIFF DID NOT DEMONSTRATE DEFENDANTS’ JANITORIAL SCHEDULE WAS MANIFESTLY UNREASONABLE IN THIS SLIP AND FALL CASE, WHICH PRECLUDES DEFENDANTS’ LIABILITY; PLAINTIFF’S TESTIMONY DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE ALLEGED WET CONDITION; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment should have been granted in this slip and fall case. Defendants’ presented evidence of the janitorial schedule for a particular day which was deemed sufficient to preclude liability because plaintiff did not demonstrate the schedule was manifestly unreasonable.  And plaintiff’s testimony the defendants did not have actual or constructive notice of the alleged wet condition on the stairs:

Defendants’ superintendent offered testimony as to the janitorial schedule to be followed on a particular day. An established reasonable cleaning routine precludes the imposition of liability … . Where, as here, the incident occurs outside of the scheduled cleaning routine, plaintiff’s failure to raise a factual issue that such routine was manifestly unreasonable so as to require altering it warrants dismissal of the complaint … .

Furthermore, plaintiff testified that there was no wet condition on the stairs when he left the building, that upon his return a short while later he observed an alleged wet condition on the stairs, that he did not notify anyone of such condition, and that as a result of this condition he slipped and fell on the stairs as he was leaving the building a second time. Plaintiff’s testimony demonstrates that defendants did not have actual notice of the purported wet condition, or constructive notice given that the condition did not exist for a sufficient length of time prior to the accident to permit defendants’ employees to discover and remedy it … . Thomas v Sere Hous. Dev. Fund Corp., 2019 NY Slip Op 06443, First Dept 9-3-19

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THERE ARE QUESTIONS OF FACT WHETHER DEFENDANTS WERE NOTIFIED THAT THE ELEVATOR DOORS CLOSED TOO FAST AND WHETHER REPAIRS TO THE DOOR COULD BE RELATED TO THE CLOSING VELOCITY; PLAINTIFF ALLEGED HIS THUMB WAS CAUGHT IN THE CLOSING DOOR; DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined summary judgment should not have been granted to the defendant’s in this elevator accident case. Plaintiff alleged the elevator door closed too fast and his thumb was caught in the closing door. Plaintiff alleged he had complained to the building superintendent, a building maintenance employee and the management company about the door closing too fast. Both parties submitted affidavits from experts:

The superintendent-in-training on the date of the accident testified that he did not receive any complaints regarding problems with the elevator door. The field mechanic for [the elevator service company] testified that he did not complete any repair work with respect to the door opening and closing too quickly. He did, however, replace the elevator shoe which is a necessary component for the elevator door to be able to close … .

Plaintiff … testified that prior to his accident he had complained to the then superintendent, another building maintenance employee, and the management company numerous times regarding the velocity with which the elevator door closed. Plaintiff testified further that during one of his conversations with the management company regarding the elevator door, he was told that management would send a service company out to address the issue. Additionally, plaintiff testified that approximately two months before his accident, he witnessed a friend get hit in the shoulder by the fast closing elevator door, and that plaintiff and his mother reported this incident to the then superintendent and the management company.

The parties also presented conflicting expert affidavits regarding the potential causes of the alleged elevator door malfunction, including the purpose of the elevator shoe, and the relevance of the velocity with which the door closed as it pertained to the cause of plaintiff’s injury, which only further precludes a grant of summary judgment … . Mable v 384 E. Assoc., LLC, 2019 NY Slip Op 06442, First Dept 9-3-19

 

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NO REASONABLE VIEW OF THE EVIDENCE SUPPORTED ANYTHING LESS THAN SERIOUS PHYSICAL INJURY, REQUEST FOR A JURY CHARGE ON ASSAULT THIRD WAS PROPERLY DENIED (CT APP). ​

The Court of Appeals, affirming the assault second conviction, determined defendant’s request for a jury charge on assault third as a lesser-included offense was properly denied because of the severity of the victim’s injuries:

Both live and photographic evidence at trial, ten months after the attack, demonstrated that the victim’s face was disfigured with scars above one eyebrow, under the other eye, on her lip and across her neck, and that apart from the scars, her facial structure and appearance had changed significantly. Testimony from her treating physician established that she suffered at least five displaced fractures around her eye sockets and nose, which were left to heal as displaced. Viewed in a light most favorable to defendant … , we agree that no reasonable view of the evidence could support a finding that the victim sustained anything less than a serious physical injury … . People v Sipp, 2019 NY Slip Op 06432, CtApp 8-29-19

 

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